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Phone: (949) 540-6704 Toll-Free: (800) 242-2151

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Orange County Immigration Petitions Lawyers

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The most common way in which a foreign national enters the United States is through family-based petitions by family members. A U.S. citizen and/or permanent resident may petition for an alien relative to immigrate to the United States based on two main categories. First, a U.S. citizen can sponsor certain relatives as an immediate relative. Second, U.S. citizens or permanent resident may also sponsor an alien relative if the immigrant does not qualify as an immediate relative. The benefit of having a relative categorized as an immediate relative is that a visa will be immediately available for those who qualify. Applicants that are not immediate relatives must wait until a visa is available based on their priority date (the date in which USCIS receives the immigrant petition). There is currently retrogression (waiting period) on all categories that are not immediate relatives.

What is an Immediate Relative?

The Immigration and Naturalization Act defines an immediate relative as:

  1. Spouses of U.S. Citizens A U.S. citizen may petition for a foreign national spouse as an immediate relative abroad. If the spouse is currently in the country, the U.S. citizen may petition for their spouse even if the person over-stayed or entered without inspection (undocumented). Additionally, the immigrant may also apply to adjust their status to be a U.S. permanent resident. If the applicant is undocumented, they will have to return to their home country and interview at the U.S. consulate office there. If the marriage is less than two years old, the foreign national spouse will be granted a conditional green card, which they must then apply to remove such conditions after two years have passed.
  2. Children of U.S. Citizens U.S citizens may sponsor their foreign-born children if they are under 21 years of age and are not married. Under the Child Citizenship Act of 2000, if a child is born after February 27, 2001, and the child is a derivative U.S. citizen, they may obtain a U.S. passport upon entry into the U.S. Alternatively, the parent can accompany the child and obtain a U.S. passport from the U.S. consulate abroad.
  3. Parents of U.S. Citizens U.S. citizens that are at least 21 years of age may sponsor for their foreign national parents as immediate relatives. The U.S. citizen child must demonstrate that he/she is capable of providing financial support for their parents so that they will not become public charge. Separate applications must be filed on behalf of each parent.

As stated above, the advantages of filing an application for an immediate parent is that an immigrant visa will immediately be available for them. However, there will be a waiting period in which USCIS process the applications. The waiting period varies for applicants depending on their countries of chargeability. A U.S. citizen spouse may file a K-3 non-immigrant visa in concurrent to, or prior to, filing an immigrant petition for an alien spouse. The K-3 non-immigrant petition would allow the applicant to come into the U.S while waiting for the immigrant petition to be processed.

Other Family-based Immigrant Petition Categories

Each year, the Immigration and Naturalization Act allows a minimum of 226,000 visas issued to four different types of family-based petitions for foreign national relatives. This number is divided among First Preference, Second Preference, Third Preference, and Fourth Preference. The names of these categories may be misleading. Regardless of what it is called, one category is not necessary better or faster than the other. The four categories are:

  1. First Preference Unmarried sons and daughters of U.S. citizens that are over 21 years of age are qualified under the first preference. Children that were under 21 at the time of filings but are now 21 or older are protected under the Child Status Protection Act. Every year, 23,400 visas are reserved for this category.
  2. Second Preference -There are two subcategories under the second preference. Subcategory (A) are spouses of U.S. permanent residents. This group takes up 77% of the available visas under this preference. Subcategory (B) are children of U.S. permanent residents that are under 21 and are unmarried. Subcategory (B) takes up the remaining 23% available visas for the second preference. At least 114,200 visas are reserved each year for Second Preference.
  3. Third Preference The third preference are available for married children of U.S. citizens. This category takes up 23,400 visas annually from the numerical limits.
  4. Fourth Preference The fourth preference are available for brothers and sisters of U.S. Citizens. They take up 65,000 visas from the 226,000 numerical limits.

Because immigrant visas are limited for the four categories mentioned above, there are usually more applications worldwide per year than the number allowed. Thus, there is a waiting period for every one of these four categories. Dependent upon the category, the waiting period for one category may be shorter than the other, and this number changes every month. As stated above, the number of categories (i.e. first vs. fourth) does not necessary mean that the first preference gets priority treatment. Each month, the U.S. Department of State issues a Visa Bulletin, which shows the retrogression period for each category of family based and employment based immigrant petitions.

The immigration attorneys at Garg and Associates, PC take a proactive approach in resolving difficult immigration cases, which may require creative processes, steps, or applications to obtain your immigration goals. The Garg and Associates immigration attorneys have the knowledge, experience, and confidence to help you achieve your goals. Please feel free to give us a call at 949-540-6704 or to contact us online. If you are not in the Houston area, we can schedule a time for a telephonic consultation at your convenience.

If you or someone you know is need of immigration law services, please do not hesitate to call Garg & Associates at 281-362-2865 for a consultation today or use our Contact Form.